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Moore: International Arbitrations 563 

eignty or home -rule was a principle of universal application, the adoption 
of which in the territories would compose all sectional strife. Douglas 
finally " engrafted " the amendment upon his Nebraska bill. Doubtless 
he preferred the original indefiniteness of the measure, since it appears to 
have been chiefly a move in the game of presidential politics. 

But the Nebraska bill with or without amendment was a monu- 
mental blunder and nothing that Mrs. Dixon has written makes it seem 
otherwise — unless war and the destruction of slavery by force of arms 
were to be desired. Apparently it never occurred to Senator Dixon or 
to the author of The True History, that if Congress had the right to 
acquire territory, it must also have the right to govern it. The South 
should have left no stone unturned to perpetuate the era of good feeling 
which followed upon the Compromise of 1850. It should have avoided all 
irritating and sectional issues, strengthened its system of domestic policy, 
and pocketed philosophically the occasional loss of a runaway slave. But 
other counsels prevailed] the Missouri Compromise was repealed— a re- 
sult which the Compromise of 1850 did not effect — and the firebrand 
of popular sovereignty flung into the territories. The consequences of a 
measure, which was vague in all essential matters, which neither indicated 
the time when the will of the people should Jse ascertained nor provided 
machinery to determine it, could be nothing less than confusion, lawless- 
ness and finally bloodshed. 

Mrs. Dixon carries the practice of allowing men to tell their own 
story to excess. Chapter XX., for example, which contains seventy- 
three pages, is mainly a report of debates from the Congressional Globe. 
And on the whole her book, though dedicated to the truth of history, 
may be fairly characterized as an impassioned defense of mistaken poli- 
cies and untenable constitutional theories. 

Leverett W. Spring. 



History and Digest of the International Arbitrations to which the 
United States has been a Party, together with Appendices con- 
taining the Treaties, relating to such Arbitrations, and Historical 
and Legal Notes on other International Arbitrations ancient and 
modern, and on the Domestic Commissions of the United States 
for the Adjustment of International Claims. By John Bassett 
Moore, Hamilton Fish Professor of International Law and Di- 
plomacy, Columbia University, New York ; sometime Assistant 
Secretary of State of the United States. (Washington : Govern- 
ment Printing Office. 1898. Six vols., pp. 5079.) 

Five years ago Professor Moore began his labors, now happily and 
honorably ended, upon the history of the international arbitrations to 
which our government has been a party. This work has been done under 
a virtual Congressional contract, designating him as the editor, the con- 
sideration of which was the beggarly sum of twenty-five hundred dollars, 



564 Reviews of Books 

the greater part of which has necessarily been expended by the author in 
fees to copyists. The joint resolution required a digest of the decisions 
rendered in these arbitrations to accompany the history, and Professor 
Moore has taken pains to make this particularly full, adding references 
to all the authorities cited in the arguments of agents and opinions of 
commissioners and umpires. Not only does he touch upon the various 
points in dispute in each arbitration proceeding as it is treated, but sepa- 
rate chapters are devoted to such subjects as Rules of Procedure, Powers 
of Arbitrators to Determine their own Jurisdiction, Intervention, Domicil, 
Nationality, Renunciation of the Right to National Protection, Neutrality, 
Arrest, Imprisonment and Detention, Expulsion, Acts of Authorities, 
Denial of Justice, and Limitation and Prescription. With the same ful- 
ness he gives accounts of classes of cases that come before mixed com- 
missions—contract claims, revenue cases, forced loans, bond cases, war 
claims and prize cases. He has thus let loose upon the world, to borrow 
Professor Woodrow Wilson's phrase, an immense amount of " cloistered 
learning," and has thereby rendered an invaluable service to our govern- 
ment, and indeed to all civilized governments disposed to settle inter- 
national disputes by peaceful means. The publicist, the diplomat, and 
the historian will find in Professor Moore's volumes a rich mine of infor- 
mation. It would have been very easy for the author under his contract 
to have given a dry and perfunctory statement of the formation, proceed- 
ings and adjudications of these arbitral boards. But Professor Moore, 
who had as early as 1891 written an interesting paper on international 
arbitration, which was published in the Report of the American Historical 
Association for that year, had become so enamored of the subject, that he 
has consulted all available sources of information, documents published 
and unpublished, memoirs, biographies, orations, local histories, and even 
public men still living who were members of these " High Courts," for 
interesting personal details concerning those who took part in our vari- 
ous mixed commissions. Nor has he confined himself to the letter of his 
contract, which might fairly be construed to require a discussion only of 
those arbitrations in which our government has been a party litigant, but 
he has furnished a full history of all those international disputes in which 
the President of the United States or some American jurist selected by 
him or agreed upon by the parties, has acted as arbitrator. Examples 
of these are the services of Mr. J. C. Bancroft Davis, Assistant Secretary 
of State in 1 869, as arbitrator between Great Britain and Portugal con- 
cerning their respective claims to the island of Bulama on the west coast 
of Africa; of President Hayes in 1878, in settling a boundary dispute 
between Paraguay and the Argentine Republic ; of President Cleveland 
in similar controversies between Costa Rica and Nicaragua, and between 
Brazil and the Argentine Republic, and also in the Cerruti claim brought 
by Italy against Colombia ; of Mr. Alexander Porter Morse in the claim 
of Van Bokkelen against Hayti; and of the Honorable William Strong, 
a retired Justice of the Supreme Court of the United States, in the claims 
of Pelletier and Lazare against the same government. 



Moore: International Arbitrations 565 

It has frequently happened that our government has itself assumed the 
settlement of claims of its own citizens against foreign governments. Thi s 
has just occurred in the recent negotiation with Spain, and another 
notable instance was the arrangement with Mexico in 1848. In these 
cases, and also where a sum in gross is paid to the United States by a 
foreign government in satisfaction of claims of our citizens against it, as 
in the payment by Great Britain under the Geneva award, a domestic 
tribunal is established under authority of an act of Congress to hear and 
determine the individual claims. Of the eleven tribunals of this charac- 
ter which have been thus established, Professor Moore has given a full 
account in Appendix I. of his work, covering 489 pages. 

In another appendix the author in his conscientious endeavor to 
furnish the public, regardless of the mere terms of his contract, an ex- 
haustive treatment of this interesting and almost wholly undeveloped sub- 
ject, has added voluminous historical notes relating to arbitrations prior to 
and during the nineteenth century. In respect of the history of arbitra- 
tion in the East, in Greece, under the Roman Empire, and during the 
Middle Ages, Professor Moore has been much aided by the work of M. 
Merignhac, entitled Traiti Thiorique et Pratique de F Arbitrage Interna- 
tional, from which he quotes freely. 

He devotes a section of this appendix to the subject of " mediation," 
and gives numerous examples of its employment, one of the most notable 
instances of its use being a negotiation begun by our government in 
1866 and concluded in 1872 for the purpose of bringing to a close the 
war between Spain on the one side and the allied republics of Peru, Chile, 
Bolivia and Ecuador on the other. 

Another section relates to the various plans which have been sug- 
gested for the establishment of a permanent system of arbitration. In 
his paper read before the American Historical Association, Professor 
Moore, commenting on the wise rules which guided our nation from the 
first as respects our duty to neutrals, our persistent advocacy of the right 
of expatriation, and our contribution to the establishment of the system 
of extradition, found particular cause for congratulation in our constant 
endeavor to substitute arbitration for force in the adjustment of disputes 
among nations. 

As early as 1832 the Senate of Massachusetts expressed an opinion in 
a resolution, adopted with only five dissenting votes, that " some mode 
should be established for the amicable and final settlement of all interna- 
tional disputes instead of resort to war. ' ' 

Later the legislature of that state and also that of Vermont recom- 
mended by resolution that a congress of nations be convoked for the pur- 
pose of establishing an international tribunal for the adjustment of differ- 
ences. Various resolutions were also reported by committees of the 
national Congress in the fifties, recommending that our government should 
secure whenever practicable a stipulation in all treaties providing for the 
settlement by arbitration of all international controversies. In 1874 the 
House of Representatives passed a resolution in favor of general arbitra- 



566 Reviews of Books 

tion. The international American conference which met in Washington 
in 1889 adopted a plan pledging the republics of North, Central, and 
South America to arbitration ' ' as a principle of American international 
law for the settlement of the differences, disputes or controversies that 
may arise between two or more of them," but it has not been ratified by 
treaties. 

It is still fresh in the public memory that our Congress in 1890 re- 
quested the President to invite negotiations with other governments 
looking to the settlement of disputes by arbitration, and that in 1893 
the British House of Commons adopted a resolution which, after reciting 
this request, expressed the hope that Her Majesty's Government would 
co-operate with the United States in this respect. 

These resolutions bore excellent fruit. Sir Julian Pauncefote and 
Secretary Gresham, and, after the latter's death, Lord Salisbury and 
Secretary Olney conducted an able correspondence resulting January 1 1 , 
1897, in an admirable treaty, which unfortunately failed in the Senate. 
However, President McKinley, who in his inaugural address said : " We 
want no wars of conquest ; we must avoid the temptation of territorial 
aggression," has urged the action of the Senate on this very treaty, 
which was "the result of our own initiative." Professor Moore gives 
us the gratifying information that the subject of a permanent treaty of 
arbitration between the two nations is still under consideration in the 
Senate. The present is assuredly the most propitious time for the con- 
clusion of such a treaty. Towards the establishment of a permanent 
plan of this nature at this time as respects not only Great Britain but all 
civilized nations, the volumes now under consideration will doubtless 
give an impetus. 

At the end of these volumes the author has wisely added the text of 
all the treaties relating to arbitrations to which our government has been 
a party. 

It is impossible within our limits to examine in detail the arbitra- 
tions which Professor Moore so fully describes, beginning in 1794, when 
our first trial of this method of settling disputes was made under the Jay 
treaty, and coming down to date. There have been fifteen of these 
with Great Britain, two of which were particularly noteworthy — the 
Geneva tribunal and the Fur Seal arbitration at Paris. With Spain we 
have had two, and concerning the first one — created by the treaty of 
1795 — Professor Moore has made a most important discovery. The im- 
pression has generally prevailed that there was never any arbitration 
conducted under the twelfth article of that treaty. It has been supposed 
that it was wholly annulled by the treaty of 1819. No records of any 
early commission are in the archives of the Department of State. But 
Professor Moore has not only produced incontestable proofs from the let- 
ters of early Secretaries of State that awards were made, but his industrious 
searches led to the discovery in that department of an old volume con- 
taining a copy of the awards. With France we have had but one arbi- 
tration. It related to war claims. With our neighbor Mexico we have 



Moore: International Arbitrations 567 

had two. The last one of these — that of 1868 — has occasioned a re- 
markable controversy. Mexico having attempted to show that two of 
the awards of Sir Edward Thornton, the umpire, in favor of American 
citizens, were obtained by fraud, the Secretary of State suspended the 
distribution of the money paid by that government upon them. The 
claimants sought by mandamus to obtain payment of these awards, but 
the Supreme Court of the United States denied the writ, holding that 
the government should not knowingly allow itself to be made the instru 
ment of wrong in arbitration proceedings, and that as between it and its 
own citizens the honesty of the claims was always open to inquiry for 
the purpose of fair dealing with the other government. It appears that 
Mr. Evarts, Secretary of State, after full examination of Mexico's evi- 
dence, reported that grave doubt had been brought upon the substantial 
integrity of one of these claims (Benjamin Weil's), and the sincerity of 
the evidence as to the measure of damages in the other (La Abra Silver 
Mining Company's), and added that as regards the latter our national 
honor should require us to reconsider it only so far as the fraudulent 
exaggeration of the claim is concerned. But Congress was asked to pro- 
vide for a more complete examination than the Secretary could give. 
Professor Moore has not looked with his usual care into the history of 
this La Abra claim, for he asserts (p. 1266), that Dr. Gardiner, a noto- 
rious rogue, who committed suicide in the Court of the District of Colum- 
bia when convicted of fraud practised upon a domestic tribunal in rela- 
tion to a mine claimed by him in Mexico, " produced stronger evidence 
of title than that on which Sir Edward Thornton awarded larger sums on 
the Weil and La Abra claims." Gardiner's title was wholly forged. 
La Abra's was proved not only by documents, but by the examination 
of the vendor by Mexico herself, and besides, in the one case the pro- 
ceeding was ex parte with no counsel to represent the government's 
interest, and in the other there was a real contest, each side having skil- 
ful agents, and the trial lasting five years. It is this La Abra case which 
is now pending before the courts of the United States. So clear was the 
evidence of title in the recent judicial proceedings that the government 
formally stipulated that it should be accepted as established. 

Our government has ventured on several occasions to interfere with 
and even to set aside awards pronounced in favor of its citizens by arbi- 
trators. When this has been done by means of a new treaty creating a 
new international tribunal for the rehearing of the same claims, as was 
the case in regard to the Venezuelan awards of 1866, there can be no 
doubt of the propriety of the course. But President Jackson in 1834 
severely rebuked Congress for passing a bill affecting the payments of 
such awards to our citizens, reminding it that such indemnification was 
their exclusive property, with which neither the executive nor the legis- 
lature could properly interfere without their consent (Richardson's Mes- 
sages of the Presidents, III. 98, 146). He added that all negotiation in 
reference to such matters was wholly within the competence of the execu- 
tive, and that such authority could neither be constitutionally abridged 
nor increased by Congress. 



568 Reviews of Books 

Mr. Bayard, however, as Secretary of State did not hesitate to review 
and to reverse Justice Strong's award against Hayti in favor of Pelletier. 
He did this, too, not on account of any newly discovered evidence affect- 
ing any of the facts in the case, but because his view of the law was ' ' in 
direct conflict with that reached by the learned arbitrator." Consider- 
ing that the arbitrator who had been selected by Minister Preston and 
Secretary Frelinghuysen did not properly construe the protocol touching 
the subject, or understand the law relating to the jurisdiction of a country 
over offences committed by a merchant vessel in one of its ports, he re- 
fused to collect the award, and it was dropped. It is doubtful whether this 
can be considered either good law or sound policy. It is in direct conflict 
not only with Jackson's well-considered views, but with the opinion of At- 
torney-General Hoar in the Gibbes case (13 Op., 19). If the same com- 
mission cannot reconsider a decision once formally delivered without a 
new agreement (Halleck's International Law, Ch. XII.), and if the 
executive cannot submit a claim to a new commission after it has been 
passed upon by the first, unless there is a treaty to that effect (Freling- 
huysen v. Key, no U. S., 63, 73), it is preposterous to hold that the 
executive department itself may review the decision of an arbitrator. 

E. I. Renick. 

Recollections of the Civil War. With the leaders at Washington and 
in the Field in the 'Sixties. By Charles A. Dana, Assistant 
Secretary of War from 1863 to 1865. (New York: D. Ap- 
pleton and Co. 1898. Pp. xiii, 296.) 

When General Grant was under a cloud, after Shiloh, and his su- 
periors were in a quandary whether to relieve him or not, Mr. Stanton, 
Secretary of War, sent Mr. Dana to his headquarters nominally to inspect 
the work of the paymasters but really to observe the situation in the army 
and report confidentially so that the Secretary might determine intelli- 
gently what to do. Mr. Dana's reports proved so reassuring, and so valu- 
able in other ways besides, that he was kept on the field until Vicksburg 
fell. He was then appointed Assistant Secretary of War and sent to 
Chattanooga to confer with General Rosecrans upon any subject he might 
"desire to have brought to the notice of the department." Here he 
remained until after the victory of Missionary Ridge and the relief of 
General Burnside. Thereafter he was employed at his desk in Wash- 
ington, on various short missions and especially with General Grant in 
Virginia. It is the story of his experiences while serving in these various 
capacities which he has written out and published. 

" Recollections" though they are and composed for the most part at 
the very close of the veteran journalist's life, there was abroad foundation 
of recorded contemporary impressions upon which to build. There is 
little in the book for which the authority of dispatches from the field 
cannot be given. Most of Mr. Dana's reports have been printed in the 
Rebellion Record. Nearly everything of interest in them has been util-